Executive Overreach

How Both Parties Have Ignored the Constitution

For campaign operatives and cable-news anchors, it is a job requirement to insist earnestly, if overconfidently, that each upcoming election is historic, realigning, and game-changing. Most, thank God, are not.

That said, while the 2012 national election may not be as momentous as those of 1800, 1860, or 1932, there does seem to be a sense that this election matters more than most, and that the challenges facing our political community—debt and deficits, ongoing armed conflict and the threat of new wars, religious freedom’s vulnerability and deep moral disagreements, unemployment and immigration—are especially big, vexing, and urgent.

The apparent urgency of these challenges prompts many to contend, understandably enough, that we have to act now and dramatically, that something bold must be done, that progress matters more than process, and that—in the words of one of President Barack Obama’s campaign themes—“we can’t wait.”

Last October, for example, after Congress responded coolly to his proposed jobs bill, the president promised—or warned—“If Congress won’t act, I will.” And he has. In a variety of contexts, he has moved on policy and personnel in ways designed to avoid the time-consuming gridlock that sometimes results from procedures mandated and constraints imposed by the Constitution. That document prescribes how high-ranking federal officials are to be appointed and gives the Senate a role in that process. The president—like, but to a greater extent than, other recent presidents—has avoided that check by creating a stable of “czars,” whose selection and portfolios are generally not reviewed by legislators. He has also outdone his predecessors in exploiting the Constitution’s authorization of “recess appointments” to install controversial appointees in powerful positions. Rather than wait for Congress to revise unpopular requirements of the No Child Left Behind law, he has offered to waive those requirements on the condition that states adopt practices, standards, and guidelines supported by his administration. Like other presidents, he has used both executive orders and the administrative-rulemaking process to implement substantive policies that the Republican-controlled House of Representatives would likely reject. And, in a widely criticized effort to leap over the jurisdictional limits imposed by the First Amendment, his administration argued before the Supreme Court that the Constitution’s religious-freedom guarantees should not stand in the way of anti-discrimination lawsuits brought by ministerial employees against religious institutions.

Again and again, we hear the same rationale: “If Congress won’t act, I will,” because “we can’t wait.” This should worry, not rally. In the politics of a free society committed to the rule of law, we (usually) can wait, and even when it seems like we can’t, we sometimes have to. It is easy, but mistaken and dangerous, to equate disagreement with bad-faith obstructionism, and to cast one’s own side as an enlightened vanguard, empowered by this or that emergency to do whatever it takes to achieve unity, to make progress, to bring about change. In this election season, though, what is needed—from candidates and citizens alike, and on both the left and right—is humility, restraint, and patience. These are more than useful life skills. They are constitutional virtues.

Tea Partiers, Occupiers, and a great many others agree that American politics and government are dysfunctional, inefficient, unresponsive, wasteful, even corrupt. And there appears to be similarly broad agreement that these failings are due, at least in part, to various departures from the order envisioned in our Constitution. For some, the villain is Citizens United; for others, it is the individual mandate. But the offense is the same.

It is true that some lonely voices—like Professor Sanford Levinson, a prominent legal scholar and political theorist—insist that it is actually our “imbecilic” Constitution that is the problem, but most Americans are able to reconcile cynicism about our politics with reverence for the charter that structures and governs it. It is not surprising, then, that looming threats to the Constitution and campaigns to protect or retrieve it figure prominently in election-year conversations. Few things are certain in politics, but it’s a safe bet that the Supreme Court’s recent rulings, its allegedly partisan composition, and its upcoming docket will be on the front burner in this year’s political campaigns. The arguments will be cast, on all sides, in terms of what the Constitution really does, or should, mean. These arguments are important. No less important than our debates about the Constitution, however, is our attachment to constitutionalism.

Constitutionalism is about more than our particular charter’s text, the Supreme Court’s various decisions, or pieties about shared values and fundamental rights. It is an attachment to the enterprise of protecting human freedom and promoting the common good by structuring, separating, and limiting power in entrenched and enforceable ways. It is a mechanism for conferring power and authorizing action, a vehicle for governing and getting things done, but it’s also an embrace of constraints, processes, and forms, and a willingness to accept delays, inefficiencies, and frustrations as unavoidable costs, perhaps even benefits. In constitutional government, how and by whom things are done is at least as important as what is done and when, or how quickly. And this is why it is troubling, rather than inspiring, to hear the president keep saying, “We can’t wait.”

This is not a partisan concern. Both parties have been guilty of overreach. Remember that, during the previous administration, critics worried about “blank checks,” separation of powers, and the “unitary executive”—and pushed back. Members of the Obama administration echoed these worries during the last election, but they do not seem to have taken them to heart.

Impatience with constitutional constraints was also on display when presidential candidate Newt Gingrich promised to haul before Congress for inquisition federal judges who issue egregiously wrongheaded rulings. It is, of course, entirely appropriate for citizens and officials alike to criticize courts’ decisions—it is even appropriate for legislators and the executive to act according to an understanding of the law that differs from a particular court’s—and the Constitution sets out a process for removing federal judges who clearly fail to meet their obligations. But it does not provide for show hearings, which a judge would be well within his or her rights to ignore. True, it takes longer to correct judicial errors through elections, retirements, appointments, and persuasion, but that is how our system requires them to be corrected, and the impulse to circumvent it, even out of a professed desire to protect the Constitution from wayward judges, is not consistent with constitutionalism.

This is not a Tea Party point, even if the Tea Party sometimes makes it. It is certainly not an endorsement of the constitutional provisions that once entrenched slavery or a denial that some others are anachronistic. Nor is it a defense of the various congressionally created, non-constitutional rules that sometimes make a mockery of the idea of structured deliberation by setting up a maze of holdouts, vetoes, and hostage taking.

Electoral majorities will sometimes reward those whose proclaimed or perceived energy and vision are too big for the rules and who promise to ignore or abolish procedures that—especially during times of deep political divisions—seem to deliver only delay and dead ends. And yet, as Chief Justice Warren Burger observed almost thirty years ago, “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.” Those who designed the Constitution understood that political liberties are best served through competition and cooperation among plural authorities and jurisdictions, and through mechanisms that check, diffuse, and divide power.

It’s comfortable to think that our own side knows what’s best, and that the other side’s obstructionism is preventing progress to an extent that justifies dispensing with the usual forms. Nevertheless, we ought to heed Thomas Jefferson: “In questions of power...let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

About the Author

Richard W. Garnett is professor of law and associate dean of the University of Notre Dame Law School.



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And Jefferson ignored his own advice with the Louisiana Purchase.

Exactly. And how long can we tolerate the party of no refusing to act on appointments of federal judges, agency heads, regulation reviews and waiver policies? After three years, the time for loyal opposition "discussion and debate" has long passed by. The GOP has stonewalled every single attempt to implement legislation, and to bring the country out of its dismal condition. If they truly want to participate in governing, they have had numerous invitations that they have spurned. Jefferson wasn't that patient either.

If Congress really wants to stand for the rights of the People against a law breaking President, Impeachment still works. A Democrat Congress nailed the serious law breaking Nixon. A Rebublican Congress tried a sexual sinner, Clinton. So if Congress can get it's act together the USA will do fine.

Richard Garnett asserts that President Obama has ignored constitutional limits of his office by actions taken at a time when a politicalized Congress can neither endorse nor override presidential authority to enforce existing law. To illustrate his criticism, Garnett says of Obama, “He has also outdone his predecessors in exploiting the Constitution’s authorization of “recess appointments” to install controversial appointees in powerful positions.”

That is a feeble argument:

(1) Chief Justice Warren, and Justices Brennan and Stewart were recess appointees of President Eisenhower.

(2) Judge William Pryor was a recess appointee to the U.S. Court of Appeals for the Eleventh Circuit, and Charles Pickering was a recess appointee to the Court of Appeals for the Fifth Circuit. President George W. Bush made both appointments.

(3) President Obama and has made no recess appointments to the federal courts. Mr. Bush is the only post-Eisenhower president to make recess appointments.

(4) According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama has made 32 recess appointments.

Mr. Evans, you write that "[t]he GOP has stonewalled every single attempt to implement legislation."  But, as I wrote, the Branch with the constitutional authority and responsibility to "implement" legislation is the Executive Branch, that is, the President.  Congress has no obligation to legislate in accord with the President's policy agenda (though things certainly work more smoothly when these branches are on the same page).  It is fair, I think, to criticize as "obstruction" the refusal of the Senate to act on presidential nominees, but both parties have been guilty of this.

Mr. Hartinger, I'm not sure what the first sentence of your comment means, but I don't *think* I asserted what you say I asserted.  In any event, the numbers you report in your bullet points do not undermine, or call into question, what I did write, namely, that the President has outdone his predecessors in "exploiting the Constitution's authorization of 'recess appointments' to install controversial appointees in powerful positions."  The appointment of, say, Richard Cordray is entirely different from the garden-variety (and, in my view, unremarkable) kind of recess appointments of non-controversial officials during true recesses.  The original justification for recess appointments probably no longer holds water, but they are not, in my view, objectionable as such.  What is objectionable, in my opinion, is the purported use of a "recess appointment" when there actually isn't a "recess."

Mr. Garnett your obvious bias is showing. The appointment of Cordray was an action by the President to enforce the laws duly enacted by the US Congress. Rather than repeal the law the Republicans sought to defeat its enforcement by leaving the department headless. To compare the  current "obstructionist " Congress as being on some "equal basis" by both parties is like comparing a single drive by shooting with a mass murder. The sinister anti-American desire of McConnell etal, to defeat Obama at all costs is at work here. They should grow up and do the right things for the Country. Justice Roberts did just that on the health care issue, and when Obama gets re-elected I expect that many more "real" American conservatives will do likewise.  

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